RAJEEV VASHISTHA Vs. STATE OF U P

JUDGEMENT

(1.) O. P. Garg, J. The petitioner, a stu dent of B. Com Part I, a budding youth of 21-22 years of age, seeks a writ of Habeas Corpus for being set at liberty on quashing the order of detention dated 30-6-1999, a copy of which is Annexure 1 to the writ petition, passed by the District Magistrate. Hardwar- respondent No. 2 under Section 3 (2) of the National Security Act, 1980 (hereinafter referred to as the "act"), which was approved by the State Govern ment-respondent No. 1 and later on con firmed on 20-8-1999 after the receipt of the recommendations of the Advisory Board constituted under the Act.

(2.) THE gist of the matter is that on 6-5-1999 at about 4 p. m. on Kankhal Road one Rajesh Sharma was murdered at his shop by opening fires by co-accused per sons who were accompanying the present petitioner-the detenu. Radheshwar Shar ma, brother of the deceased laid an F. I. R. of the incident at 5. 35 p. m. on the same day at P. S. Jwalapur, Hardwar in pursuance of which a case crime No. 191 of 1999 under Section 302, I. P. C. came to be registered. During the course of investigation, the name of the petitioner came to light as the murder was the product of the criminal conspiracy punishable under Section 120-B, I. P. C. hatched by the petitioner and other co-accused persons. THE petitioner was arrested on 13th May, 1999 along with a country made pistol of. 315 bore with cartridges. While he was in jail, the deten tion order dated 30-6-1999, Annexure 1, was passed by Smt. Aradhna Shukla, District Magistrate, Hardwar. THE grounds of detention as contemplated under Section 8 of the Act are annexed with the detention order. It is stated That Rajesh Sharma was annihilated at a public place by a assassin Naushad son of Sharif hired by the petitioner in the brilliant light of the day at his own shop with the result fear and terror loomed large in the area and the citizens feeling insecure started running helter- skelter, the shops were closed, the normal tempo of life was disturbed; there was breach of peace and public tranquility and all-over public disorder prevailed. With a view to normalize the life and to make atmosphere peaceful, the police contin gent had to be deployed during the period 6th to 14th May, 1999. It is also mentioned that the petitioner along with co-accused Naushad, Riasat alias Petha and Rakesh had entered into a criminal conspiracy to exterminate Rajesh Sharma; had hired Naushad for the purpose and a sum of Rs. 50,000 was promised to be paid to him after the work was accomplished though a sum of Rs. 16,000 was paid as advance. It was also mentioned in the grounds of detention that the petitioner has moved an applicat ion for bail before the District and Sessions Judge, Hardwar on 29th June, 1999 which was fixed for hearing on 4-7-1999; if the petitioner was successful in getting released on bail, it is anticipated that he may resort to criminal activities thereby disturbing the "public order". On the basis of the above grounds the order of detention was passed.

(3.) SRI Mahendra Pratap, learned A. G. A. urged that the correctness or otherwise of the facts on the basis of which the detaining authority felt satisfied in passing the detention order cannot be sifted or probed by this Court since it has a limited role in the matter of examining the validity or otherwise of the detention order. He fortified his submissions with reference to the various observations made by the apex Court in the case of State of Gujarat v. Adam Kasam Bhaya, A. I. R. 1981sc 2005; K. Aruna Kumari v. Govern ment of Andhra Pradesh and others, 1998 (25) ACC 15 (S. C); U. Vijay Laxmi v. State of Tamil Nadu, 1995 SCC (Crl) 176, and the decision of this Court in Vijay Pal alias Pappu v. Union of India, 1996 (33) ACC 741. It is true that this Court cannot sit in appeal over the discretion exercised by the detaining authority on the basis of the material placed before him, nevertheless, one cannot lose sight of the fact that the law of preventive detention is a hard law and, therefore, it should be strictly con strued. Care should be taken that the liber ty of a person is not jeopardized unless his case falls squarely within the four corners of the relevant law. The law of preventive detention should 'not be used merely to clip the wings of the accused who is in volved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary Criminal law it will not be possible to resist the issue of orders of bail unless the material available is such as would satisfy the requirement of the legal provisions authorising such detention. When a per son is enlarged on bail by competent Criminal Court, great caution should be exercised in scrutinizing the validity of an order of preventive detention which is based on the very same charge which is to be tried by the Criminal Court. It is true that this Court cannot substitute its opinion for that of the detaining authority. In a recent decision of the Court reported in the case of Ravi Singh v. State ofu. P. and others, (1999) 1 J. I. C. 1999 (Alld), similar view was taken that it is the subjective satisfaction of the detaining authority which should weigh and this Court cannot interfere if there was enough material before the detaining authority to form a particular opinion. There can be no quar rel with the legal position as has been stated above, nevertheless, we cannot agree with the learned A. G. A. that those who are responsible for the maintenance of "public order" must be the sole judges of what the "public order" requires. In Vijay Narain Singh v. State of Bihar and others, (1984) 3 SCC 14, Hon'ble Chinnappa Reddy, J. who agreed with Hon. E. S. Venkataramiah, J. (majority view), ob served as follows: ". . . . . . . . . . . . . . It is too perilous a proposition. Our Constitution does not give a carte blanche to any organ of the State to be the sole arbiter in such matters. Preventive detention is con sidered so treacherous and such an anathema to civilized thought and democratic polity that safeguards against undue exercise of the power to detain without trial have been built into the Constitution itself and incorporated as Fundamental Rights. There are two sentinels, one at either end. The Legislature is required to make the law circumscribing the limits within which persons may be preventively detained and providing for the safeguards prescribed by the Constitution and the Courts are required to examine, when demanded, whether there has been any excessive detention, that is, whether the limits set by the Constitution and the Legis lature have been transgressed. Preventive detention is not beyond judicial scrutiny. While adequacy or sufficiency may not be a ground of challenge, relevancy and proximity are certainly grounds of challenge. Nor is it for the Court to put itself in the position of the detaining authority and to satisfy itself that the untested facts reveal a path of crime. I agree with my brother Sen, J. when he says. It has always been the view of this Court that the detention of individuals without trials for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an ade quate reason for invading the personal liberty of the citizen except in accordance with the proce dure established by law. "